Terms & Conditions of Business
1.1 In these Conditions:
"Company" means Elaine Wigham Consultancy.
"Confidential Information" means secret or confidential commercial, financial, marketing, technical or other information, know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the date of these Conditions, together with any reproduction of such information in any form or medium or any part(s) of this information (and "confidential" means that the information is not publicly available).
"Conditions" means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Client.
"Consequential Loss" means the following types of loss whether arising from negligence, breach of contract or otherwise:
a) loss of profit, revenue or other types of economic loss;
b) loss of business or contracts;
c) loss of anticipated savings or goodwill;
d) losses arising from loss of data;
e) any losses which arise other than directly and naturally from a breach of contract or other losses which a court holds to be consequential, special or indirect losses;
f) any losses arising from any claims by a third party for any of the above types of loss.
"Contract" shall mean the contract for the provision of the Services.
"Client" means any person whose order for Services is accepted by the Company.
"Intellectual Property" means any patent, copyright, design, right, registered design, trade mark, service mark, know-how, utility, model, unregistered design or where relevant, any application for any such right, or other industrial or intellectual property right anywhere in the world.
"Services" means any training, consultancy, programme, review or advice provided by the Company.
“Service Proposal” means the specifications and quotations for the provision of the Services sent to the Client by the Company on receipt of a request by the Client for the Company to provide the Services.
1.2 All other words are to be given their normal English meaning taken in the context of these Conditions. Any dispute as to the meaning of a word shall be settled by reference to the Shorter Oxford English Dictionary.
1.3 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Basis of Sale
2.1 Any Service Proposal given by the Company is valid for a period of 30 days only (unless previously withdrawn by the Company) and subject to either acceptance in writing by the Client in such form as may be prescribed by the Company or receipt of the Sample by the Company. A binding contract shall not be formed until the Company has received the Client's said acceptance. Any Contract shall be governed by these Conditions to the exclusion of any other terms and conditions but subject to the Service Proposal.
No variation to these Conditions shall be binding unless agreed in writing between the Company and the Client.
The Company's employees or agents are not authorised to make any representations about the Services unless confirmed by the Company in writing. In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
Any typographical, clerical or other error or omission in any sales literature, Service Proposal, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.1 Any reviews, reports or certificates issued by the Company detailing the results of the Services may, subject to the client having made full payment, be used by the Client as evidence in any civil or criminal proceedings.
3.2 Where the Company has agreed to provide the Services at either the Client's premises, at the premises of another party or at any other relevant premises:
3.2.1 the Client shall be responsible for giving or obtaining any licences, consents or permissions which may be necessary to enable the Company to provide the Services at these premises. Where the Company is impeded in carrying out the Services due to the Client not obtaining the necessary licences, consents or permissions, the Client shall be considered in breach of the Contract and shall be liable for all fees and costs incurred; and
3.2.2 the Client shall ensure that there are adequate health and safety provisions for the Company's personnel at these premises. The Company reserves the right to withdraw the Company's personnel from the premises if there is reasonable concern for the health and safety of the Company's personnel and the Client will be considered in breach of the Contract and will be liable for all fees and costs incurred.
3.3 The company may use sub-contractors for the delivery of your service. Sub-contractors are assigned upon competence and location where possible and following sign off are subject to on-going training and montoring as required by the relevant certification and/or training programmes. Any objections to use of a Sub-Contractor in delivery of your service must be indicated at the point of sale.
4. Service Proposal
The Client shall be responsible to the Company for ensuring the accuracy of the information priovided which formulates the basis of the contract. The Client shall also be responsible for ensuring any necessary information relating to the Services is provided within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
The quantity, quality and description of and any specification for the Services shall be those set out in the Service Proposal.
The Company reserves the right to make any changes in the Service Proposal which are required to conform with any applicable safety or other statutory requirements or which do not materially affect the quality or performance of the Services.
Once signed, a Service Proposal may not be amended, varied, deferred or cancelled by the Client except with the agreement in writing of the Company and on terms that the Client shall indemnify the Company in full against all loss (including Consequential Loss), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such amendment, variation, deferment or cancellation.
If any of the contents of the Service Proposal are provided by the Client or a third party instructed by the Client the Client will indemnify the Company against any loss (including Consequential Loss) incurred by the Company in connection with any claim which results from providing those Services.
5. Delivery of the Service
5.1 The Company shall deliver the results or reports of the Services to the Client by sending the results, or information by first class post, email or facsimile to the address provided by the Client.
5.2 Estimated delivery dates (if any) are given in good faith but are not binding unless so confirmed in writing in the Service Proposal and in that event time shall not in this respect be of the essence of the Contract.
5.3 Risk of damage to or loss of the results or reports shall pass to the Client at the time of delivery. Delivery shall be deemed to have taken place, if delivered by first class post, 48 hours after the date of posting; and if sent by email or facsimile on the day of transmission, provided it is sent during business hours on a business day and, if not, on the next business day.
6. Warranties and Liability
6.1 The results of the Services shall address the items and information submitted only and are not to be regarded as representative of any larger population from which the Sample was taken.
6.2 Subject to the conditions set out below the Company warrants that the Services shall be provided or carried out with reasonable care and skill.
6.3 The above warranty is given by the Company subject to the following conditions:
6.3.1 the Company shall be under no liability in respect of any defect in the Services arising from any information on the provision of Services provided by the Client or a third party instructed by the Client;
6.3.2 the Company shall be under no liability where the Client has failed to disclose any relevant facts or information or failed to follow any advice or recommendation given by the Company;
6.3.3 the Company shall be under no liability where the Client has relied or acted upon preliminary results or advice given prior to the delivery of the final approved results or report;
6.3.4 the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Services has not been paid by the due date for payment; and
6.3.5 the above warranty does not extend to Services that have been subcontracted by the Company, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the Subcontractor to the Company.
6.4 Subject as expressly provided in these Conditions, and except where the Services are provided to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other tern-is implied by statute or common law are excluded to the fullest extent permitted by law.
6.5 Where the Services are provided under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 as amended) the statutory rights of the Client are not affected by these Conditions.
6.6 Any claim by the Client which is based on any defect in the Services or their failure to correspond with specification shall be notified to the Company in writing within 5 days from the date of completion of the Services or (where the defect or failure was not apparent on reasonable inspection) from the date of discovery of the defect or failure. If the Client does not notify the Company accordingly, the Company shall have no liability for such defect or failure and the Client shall be bound to pay the price in accordance with Clause 9 (Terms of Payment) of these Conditions.
6.7 Where any valid claim in respect of the Services is notified to the Company in accordance with these Conditions, the Company shall be entitled to carry out such remedial work as it considers necessary free of charge or, at the Company's sole discretion, refund to the Client the price of the Services (or a proportionate part of the price), but the Company shall have no further liability to the Client.
6.8 Except in respect of death or personal injury caused by the Company's negligence or any liability imposed on the Company by Part I of the Consumer Protection Act 1987 or for fraud, the Company shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any Consequential Loss whether caused by the negligence of the Company, its employees or agents or otherwise which arise out of or in connection with the provision of the Services.
6.9 The Company shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, causes beyond the Company's reasonable control shall include an Act of God, explosion, flood, tempest, fire, accident, war or threat of war, acts of terrorism, sabotage, insurrection, civil disturbance, requisition, acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
6.10 Except in respect of death or personal injury caused by the Company's negligence or any liability imposed on the Company by Part I of the Consumer Protection Act 1987 or for fraud the Company's total liability for any one claim or for the total of all claims arising from any one act or default of the Company shall not exceed the contract price.
7. Price of the Services
7.1 The Company reserves the right by giving notice to the Client at any time prior to completion of the Services to increase the price of the Services to reflect:
7.1.1 any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour, materials or other costs of manufacture);
7.1.2 implementation of any requests by the Client for special or preferential treatment (including, without limitation, the provision of the Services outside the Company's usual office hours or expedited responses);
7.1.3 any changes in delivery;
7.1.4 any changes to the method of delivery;
7.1.5 any changes to the completion dates;
7.1.6 any changes to the quantities or specifications which are requested by the Client;
7.1.7 any delay caused by any instructions of the Client; or
7.1.8 any failure of the Client to give adequate information and instructions.
7.2 The price is exclusive of any applicable value added tax.
7.3 Where relevant, necessary travelling costs and disbursements will be levied at the Company's prevailing rates, a copy of which is available to the Client on request.
8. Terms of Payment
8.1 Subject to any special terms agreed in Writing between the Client and the Company, the Company shall be entitled to invoice the Client for the price of the Services prior to or at any time after completion of the Services.
8.2 The Client shall pay the full price of the Services without any deduction on completion of the work with the exception of BRCGS course training which will be paid prior to training taking place.
8.3 The Company may at any time require the Client to provide security for payment, or withdraw any credit facilities and/or require the Client to make payment in cash immediately.
8.4 If the Client fails to make payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
8.4.1 cancel or suspend the Contract;
8.4.2 appropriate any payment made by the Client to such of the Services (or the services supplied under any other contract between the Client and the Company) as the Company may think fit; and
8.4.3 We require payment to terms. Payment must be made on time, in full, and without any deduction, set off or counterclaim. In the event that an account is outstanding, we will refer the matter to our debt collection agent, which will incur additional costs. Any costs incurred to collect the debt will be added to the debt, plus VAT at the prevailing rate. You agree that you will be legally liable to pay us that surcharge, and that payment of the same can be enforced against you in court. You also agree to pay interest at the relevant reference rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998, which interest is payable both after and before any judgment of the court and continues to accrue.
8.5 Payment shall not be deemed to have been made until payment in cash or cleared funds has been received by the Company.
9.1 Both parties shall keep and procure to be kept secret and confidential all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties under this Agreement and shall not use nor disclose the same save for the proper performance of these Conditions, where required by any proper authority or court of law or with the prior written consent of the other party.
10. Intellectual Property and Related Matters
10.1 Nothing in these Conditions, whether express or implied, shall entitle the Client to use any Intellectual Property Rights of the Company without the prior written consent of the Company.
10.2 Nothing in these Conditions, whether express or implied by custom or course of dealing shall entitle the Client to use its association with the Company to promote, elevate, enhance or advertise the reputation or standing of the Client or to attract new business without the prior written consent of the Company.
10.3 All Intellectual Property Rights relating to the provision of the Services shall be and remain the property of the Company and nothing in these Conditions shall constitute the transfer of these rights to the Client.
11. Insolvency of the Client
11.1 In the event that:
11.1.1 the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for purposes of amalgamation or reconstruction); or
11.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
11.1.3 the Client ceases, or threatens to cease, to carry on business; or
11.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly
11.2 then, without prejudice to the other rights or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further work under the Contract without any liability to the Client, and if the Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.1 Without prejudice to any of its other rights or remedies the Company may without liability cancel a Contract or suspend its Services immediately if the Client commits any breach of this or any other contract with the Company or in the case of a breach that is remediable fails to remedy the breach within 30 days of being notified of the breach by the Company.
12.2 The Client is entitled to terminate a contract and will be liable for any costs incurred to date by the Company in preparation for delivering the Service. Should the client terminate 14 days prior to delivering the Service with respect of clause 17.1 then the Client shall also be liable for 50% of the total proforma invoice.
13. Law and Jurisdiction
13.1 These Conditions and the Contract shall be governed by and construed in accordance with the laws of England and Wales and the Client submits to the exclusive jurisdiction of the English Courts.
14.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
15.1 No waiver by the Company in respect of any breach by the Client of these Conditions shall operate as a waiver in respect of any subsequent breach.
16.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
17. Third Party Rights
17.1 For the purpose of the Contracts (Rights of Third Parties) Act 1999, these Conditions do not and are not intended to give any rights or any right to enforce any of its provisions to any person who is not a party to it.
18.1 The Client shall not be entitled to deduct or set-off any amount claimed by the Client to be done from the Company from or against any amount due from the Client to the Company under these Conditions or otherwise. All amounts due from the Client to the Company under these Conditions shall be paid promptly and without any demand, deduction, set-off or counterclaim whatsoever.
19. Entire Agreement
19.1 These Conditions contain the entire agreement and understanding of the parties and supersedes all prior agreements and understandings, whether written or oral, and all prior dealings between the parties with respect to the subject matter of these Conditions.